High Court Kerala High Court

P. Ayyappan Nair vs P. Madhavan Pillai on 21 May, 2010

Kerala High Court
P. Ayyappan Nair vs P. Madhavan Pillai on 21 May, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

FAO.No. 228 of 2008()


1. P. AYYAPPAN NAIR, S/O.PACHANPILLAI,
                      ...  Petitioner
2. S. SHEELAJA,

                        Vs



1. P. MADHAVAN PILLAI,
                       ...       Respondent

2. AMBIKAKUMARI,

3. VASUDEVAN PILLAI,

                For Petitioner  :SRI.G.S.REGHUNATH

                For Respondent  :SRI.SIBY MATHEW

The Hon'ble MR. Justice HARUN-UL-RASHID

 Dated :21/05/2010

 O R D E R
                       HARUN-UL-RASHID, J.
                      -----------------------------
                        FA.O.No.228 Of 2008
                      ----------------------------
                Dated this the 21st day of May, 2010.

                           J U D G M E N T

Plaintiffs in O.S.No.566 of 1997 on the file of the Munsiff

Court, Attingal, are the appellants. The suit was originally filed

for perpetual injunction restraining the defendants from

demolishing the old boundaries of plaint schedule properties,

trespassing over the same, creating any new pathway over plaint

schedule property or committing any waste in the property. The

trial court decreed the suit, plaintiffs’ title and possession of the

plaint schedule property was declared and a permanent

prohibitory injunction was passed whereby the defendants are

restrained from trespassing into the plaint schedule property or

commit any waste or doing any act which may cause obstruction

to the plaintiffs’ peaceful possession and enjoyment of the

property. In the appeal preferred by the defendants, by

judgment dated 31.7.2008, the lower appellate court allowed the

appeal, remanded the matter, directing the trial court to dispose

of the suit afresh untrammelled by the observations made by the

appellate court judgment. Being aggrieved by the order of

F.A.O.No.228 Of 2008

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remand the plaintiffs have preferred the appeal. Parties are

hereinafter referred to as the plaintiffs and defendants as arrayed

in the suit.

2. The dispute is in respect of 9 cents of land lying on the

southern side of the plaint schedule property having an extent of

1 acre 39 cents. Both the plaintiffs and defendants are claiming

title and possession over the disputed portion of land. The

plaintiffs and defendants are close relatives. The mother of first

plaintiff and the first defendant namely, Bhargavi Amma had 2

acres and 8= cents in survey No.2516/A in Melthonnakkal

Vilage. As per partition deed No.4535/1952, out of 2 acres and

8= cents mentioned above, 1 acre 37 cents on the east and 2

cents on the southern side of remaining 71= cents was allotted

to the first plaintiff and mother jointly as A schedule in the deed,

marked as Ext.A1 in the case, and the remaining 69= cents was

allotted to the first plaintiff’s brother Gopala Pillai. At the time of

execution of Ext.A1 partition deed the first plaintiff was a minor

having 7 years old. Subsequently, their mother executed Ext.B2

sale deed No.2227/1953 in favour of the first defendant

Madhavan Pillai, in respect of 7 cents on the southern side of 1

F.A.O.No.228 Of 2008

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acre 37 cents and 2 cents on the southern side of 71= cents.

Thus, the first defendant obtained 9 cents as per Ext.B2 sale

deed. In the year 1974, the mother executed Ext.B1 settlement

deed conveying her one half right in 1 acre 30 cents in favour of

the first plaintiff. Thus, the first plaintiff became absolute owner

of 1 acre 30 cents. The extent covered by the said settlement

deed is the area excluding the 9 cents sold in favour of the first

defendant. In the year 1997, the first defendant sold the

disputed 9 cents to his daughter, the second defendant as per

Ext.B7 sale deed. The second defendant claim title and

possession over the disputed 9 cents. The trial court, after a

detailed consideration of the materials produced before the court,

held that under Ext.B1, the property conveyed to the first plaintiff

is 1 acre 30 cents excluding the 9 cents on the southern side

which was covered as per Ext.B2 sale deed. It was further

observed that, it is clear from Ext.B2 sale deed that the first

plaintiff had got information about Ext.B2 sale deed in the year

1974 and the first plaintiff had not chosen to challenge Ext.B2 till

now. The trial court also observed that the first plaintiff as PW1

admitted that he attained majority in he year 1964, that he was

F.A.O.No.228 Of 2008

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a major at the time of execution of Ext.B1 settlement deed and

that if he had no knowledge about Ext.B2 sale deed he could

have filed a suit for a declaration in respect of Ext.B2 sale deed

and further held that the facts and circumstances of the case

clearly shows that the first plaintiff has knowledge about Ext.B2

sale deed from 1974 onwards. The trial court also examined the

question as to who is in possession of the disputed 9 cents. The

trial court held that the defendants has not obtained possession

of 9 cents as per Ext.B2 sale deed and the same was in

possession of the plaintiff from 1953 onwards and further held

that the title obtained by the first defendant as per Ext.B2 sale

deed has been lost by the continuous and uninterrupted

possession of the plaintiffs adverse to the defendants and that

the plaintiffs have perfected their title over the property by

adverse possession and limitation. The trial court on the basis of

the said findings decreed the suit declaring the plaintiffs’ title and

possession over the plaint schedule property and also issued

permanent prohibitory injunction.

3. In the appeal preferred by the defendants the lower

appellate court re-appreciated the evidence. During the

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pendency of the appeal the appellants produced mortgage deed

No.2057 dated 10.10.1973 and “purathezhuthu” executed by the

first defendant in favour of one Sarasamma. The said document

was produced along with I.A.No.874 of 2008 requesting the

appellate court to receive in evidence the mortgage deed in

exercise of the power under Order XLI Rule 27 of the Code of

Civil Procedure. From the additional documents produced before

the appellate court, it can be seen that in the year 1973, the

disputed 9 cents was mortgaged by the first defendant to one

Sarasamma which has been redeemed in the year 1983 by

executing a “purathezhuthu”. Appellants contended that the

additional documents will have an important bearing on the

merits of the case and therefore prayed to accept the additional

documents in evidence. The respondents/plaintiffs vehemently

opposed the admission of the additional documents. A detailed

objection has also been filed. According to the learned Judge the

additional documents are vital documents as far as the case is

concerned, being a mortgage deed in respect of the disputed 9

cents executed in the year 1973. The appellate court also found

that the “purathezhuthu” which was also produced along with the

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mortgage deed would go to show that the mortgage was

redeemed after ten years, in the year 1983. In this context, the

lower appellate court took the view that a remand is necessary

for affording an opportunity to the parties to establish whether

there is transfer of possession of the property based on the

mortgage deed and that there are sufficient grounds to allow

I.A.No.874 of 2008 and held that a remand is inevitable.

4. The lower appellate court also observed that the

records would show that on 19.6.2001 the lower court raised six

issues whereas the judgment reveals that those were not the

issues considered by the lower court. The appellate court

observed that the issue as to the adverse possession and

limitation has not been specifically framed. In such

circumstances also, the court also held that issues are not

properly framed and not considered.

5. Learned counsel appearing for the plaintiffs submitted

that framing of additional issues does not arise since the issue to

be decided is as to whether the plaintiffs have got title and

possession over the plaint schedule property. The trial court can

consider the question of framing additional issues only after

F.A.O.No.228 Of 2008

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hearing both sides and after considering the objections raised by

the plaintiffs. I do not find any reason to interfere with the

conclusions and observations entered by the lower appellate

court. The appellate court directed the trial court to dispose of

the matter afresh as expeditiously as possible, untrammelled by

any of the observations made by the appellate judgment. In the

interest of justice, this Court is of the view that the case can be

decided afresh within a time frame fixed by this Court. The trial

court shall dispose of the suit within a period of six months from

the date of receipt of a copy of this judgment. The date of

appearance of the parties is fixed as 22.6.2010. The records of

the case shall be transmitted immediately to the trial court,

forthwith.

In the result, the appeal fails and accordingly, dismissed.

There will be no order as to costs.

HARUN-UL-RASHID,
Judge.

bkn/-